• Second case filed to stop Mwilu from acting as CJ. Activist says she hasn't taken oath, another petitioner said she faces graft allegations.
• State asks judge Said Chitembwe to recuse himself as he's a candidate for CJ and Supreme Court justice. Bench does not rule, adjourns to May 12.
Image: FILE
An activist on Thursday filed a case seeking to stop Justice Philomena Mwilu from performing the duties of the Chief Justice because she has not taken the oath of office.
She has been acting Chief Justice since CJ David Maraga retired.
This is the second case filed to stop Justice Mwilu from working since she started acting as CJ on January 13.
The first one was filed by Isaac Mbiti in Meru. Mbiti is seeking to stop her from work. He cited four abuse-of-office charges pending against Mwilu at the Judicial Service Commission. She denies them all.
In court, Mbiti argued Mwilu’s continued performance of any constitutional duties while facing graft allegations "reeks of favoritism". He said it offends the tenure, ideals and spirit of Chapter Six of the Constitution on integrity.
On Thursday, Okiya Omtatah filed yet another case against Mwilu.
He said Mwilu has been acting as CJ without taking the oath of office as provided for under article 74 of the Constitution.
Omtata's petition read: “The very grave state of affairs above requires the immediate intervention of this Honorable Court to stop the violations of Article 74 of the Constitution [and it] should ensure the respondents discharge their obligation to respect, uphold and defend the Constitution.”
He wants the court to intervene and ensure the all-important office of the CJ is only occupied as provided for in law.
Meanwhile, in another court on Thursday, a three-judge bench handling justice Mwilu’s case challenging the JSC probe against her adjourned the hearing.
The judges did not make a determination on an oral application by state counsel Alexander Muteti seeking to disqualify judge Said Chitembwe from presiding over the case.
Muteti asked Justice Chitembwe to recuse himself, without making a formal application, saying he is shortlisted for the position of CJ and Supreme Court judge. That means he will appear before JSC commissioners, two of whom are party to the case.
Muteti argued he should disqualify himself to promote the fair administration of justice.
His plea was supported by lawyers Paul Muite and Taib Ali Taib.
Muite said even though he would have liked to see judge Chitembwe preside over the matter, it is important public confidence in the administration of justice is given prominence.
He said justice should not only be done but be seen to be done and as such it is important the judge recuses himself.
Justice Mwilu’s lawyer James Orengo expressed surprise the state now doesn’t want to pursue the expeditious hearing of the matter, which was its earlier position.
He said the matter is before a three-judge bench and one judge will not decide on it.
Orengo termed the oral application for recusal mere "forum shopping".
However, he asked the application be made formally to enable the public to get a full understanding of the reasoning of the court and grounds for recusal.
President of Law Society of Kenya Nelson Havi, who is also representing Mwilu, said it is only proper a formal application be filed. In the event the judge recuses himself, the reasons will not be left to speculation, Havi said.
Speculation is likely to continue demeaning the institution of the Judiciary and the individual offices of judges, he said.
The Director of Public Prosecutions has charged Mwilu with fraud, bribery, abuses of office and related charges. She denies any wrongdoing.
Mwilu had opposed the JSC hearing, saying two of the commissioners - Attorney General Kihara Kariuki and Macharia Njeru - are biased against her. The JSC dismissed the bias claims, so she moved to the High Court, which blocked the JSC hearings.
The three judges - namely Chitembwe, Weldon Korir and Roselyne Aburili - adjourned for an hour to deliberate and give their decision.
They later declined to rule immediately and said they would address the issue at a later stage.
They adjourned the case to May 12.
(Edited by V. Graham)